The Composition of the Courts of Appeals Is Not a Function of Jimmy Carter's, Harry Reid's, or Chuck Schumer's "Court-Packing"

As readers of this blog are likely aware, Steven Calabresi recently proposed that Congress create sixty-one new circuit judgeships in order to "undo[] the judicial legacy of President Barack Obama."  This proposal has been roundly criticized, including by some impeccable legal conservatives, as a court-packing scheme, as its stated aims suggest.  

In response, Professor Calabresi has claimed that his scheme is really a "court unpacking" scheme, designed to "counter-act[] Democratic court packing under President Carter" and packing-adjacent chicanery under Chuck Schumer.  President Carter, the story goes, packed the lower courts by expanding them; Chuck Schumer protected Carter's court-packing from attrition by filibustering George W. Bush's nominees and abolishing the filibuster for lower-court judges during Obama's presidency.  (Actually, Harry Reid did that.) That's why, he writes at the National Review, most of the circuit courts (nine out of thirteen as of 2016) are majority-Democrat-appointee instead of majority-Republican-appointee:

Republicans will have controlled the presidency for 32 of the 52 years between 1969 and 2021.  By all rights, Republicans ought to have a three-fifths majority on all the federal courts of appeals.  Instead, there is a Democratic majority on almost all of those courts. [AS: Actually, nine out of thirteen.  Calling that almost all is mathematically identical to saying that Mike Trout makes an out in almost all of his at-bats, or that the day is almost all over at 4:37 P.M.]  This is the result of the Carter judgeship bill plus Senator Schumer’s [AS: Reid's] shameful behavior in filibustering Bush’s lower-court judges and then abolishing the filibuster for Obama’s lower-court judges.

Our proposal simply would restore the judiciary to what would have been the status quo but for Democratic court-packing

Or as he puts the point only a hair less tendentiously at Balkinization:

The bottom line is that the Republican Party won the presidency for 32 out of the 52 years between 1969 and 2021 and so one would expect that about three-fifths of all federal court of appeals judges would be appointed by Republican presidents.  The fact this is not the case is evidence of the court packing Jimmy Carter and Chuck Schumer have been engaged in.

I don't know if Calabresi seriously believes that we should expect 60% of active judges on every circuit to have been appointed by Republican presidents because Republican Presidents will have held the White House for 60% of the time between 1969 and 2021, or actually thinks that there's any Carter "court-packing" left to unpack.  Probably the more charitable assumption is that Calabresi understands the current composition of the courts isn't a function of Carter and Schumer/Reid's "court packing," and that he is merely attempting to provide a thin veil of spin to politicians who might support his plan.  

However, supposing that Calabresi means what he says seriously, the reason Democratic appointees control the circuit courts in spite of Republican control of the White House for three-fifths of the 1969–2021 period is not anything that Carter or even Schumer and Reid did, but death and senior status.  The lifespan of the average circuit-court judge is simply too short, the temptation of senior status too great, and the age at which circuit-court judges are appointed too high, for Republican control of the White House through much of the '70s, or even Republican control of the White House through all of the '80s, to have much effect on the composition of the circuit courts in 2017.

To begin with, it is nonsense to say that we should expect anything about the composition of the courts because of Republican control of the White House in 2018, 2019, and 2020, which, it should hardly need saying, haven't happened yet.  When those years do pass, we should expect the courts to become somewhat more Republican, but they have to pass first.  So the relevant years, taking Calabresi's start date of 1969 as a given for a moment, are 1969 through 2017, and Republicans have controlled the White House for twenty-nine of those forty-nine years.  To be sure, that's still 59%.  But then we come to the matter of Calabresi's start date.

The first eight of the twenty-nine years since 1969 that Republicans controlled the White House were 1969–76, five and a half of which were years when Nixon was the President, two and a half of which were years in which Ford served out Nixon's second term.  If for some reason we discounted those, Republicans would have controlled the White House for just twenty-one of the relevant forty-one years.  

Now, in spite of only holding the White House for five and a half years, Nixon was a tremendous success as an appointer of federal judges.  He appointed four Supreme Court Justices, and 231 federal judges in all, thirty-eight more than the previous record-holder, FDR, who held the White House for a little over twelve years.  Nixon's appointees, however, couldn't live forever.  Chief Justice Burger and Justices Powell, Rehnquist and Blackmun are all dead.  So are most of the forty-six judges he appointed to the courts of appeals. 

Of the small handful who aren't dead, all of them either retired from the judiciary altogether or took senior status long ago, a form of semi-retirement that can become available as early as age 65.  The last active Nixon appointee to the courts of appeals retired from active service over ten years ago, and died two months later.  By 1998, he was the only Nixon appointee in active service on the courts of appeals; by June 30, 1992, only eighteen years after Nixon's resignation, he was one of only three.  Only three Nixon appointees even remain in senior service; the youngest is almost eighty-nine years old.  Many of the other Nixon appointees that Calabresi seems to think should still be on the lower courts would be well over a hundred were they alive today.

None of this should be surprising.  The '70s were quite a while ago.  And because of the normal age of appointment to the circuit courts (somewhere in the 40s or 50s), the attractions and early availability of senior status (which carries full pay), and the weak inducements to serve in active status until death, a president's influence on the composition of the lower courts wanes very rapidly—far more so than his influence on the composition of the Supreme Court, where, for example, Nixon/Ford appointees made up a majority of the Court until Burger's retirement in 1986, and still held two of nine seats until Rehnquist's death in 2005.

We should not expect, then, anything about the current composition of the circuit courts on account of Nixon's tenure in the White House; each and every of his appointees to those courts aged out of active service over a decade ago.  What about Ford?  Ford, who spent half of his time in the White House running for reelection, appointed eleven judges to the courts of appeals in his brief presidential stint.  Of those eleven, one, Gerald Tjoflat, is still in active service in the courts of appeals; Justice Kennedy, a Ford appointee to the Ninth Circuit, is still active, but is so on a higher court.  As early as 1998, almost twenty years ago, there was only one active-duty Ford appointee left on the courts of appeals, Judge Tjoflat.  The others were appointed to the Supreme Court or took senior status, and of the senior-status judges, only two of them even still hold senior status; the others died off.  The youngest of the remaining Ford circuit judges, Tjoflat, is about to turn eighty-eight.

We shouldn't expect, then, the current composition of the circuit courts to reflect Nixon or Ford's tenure in the White House; through no fault of Democratic "court-packing," only one of the fifty-seven circuit judges Nixon and Ford appointed is both alive today and chooses to remain in active service.  Nixon and Ford's eight years in the White House are simply irrelevant to present circuit-court composition.  So rather than Republicans controlling the White House during twenty-nine of the relevant past forty-nine years, we could say that Republicans have controlled the White House during twenty-one of the relevant past forty-one years, or just over 50%.

That assumes, however, that Carter's four years in the White House are relevant.  This is a double-edged sword for Calabresi's argument.  If we discount Carter like we discounted Nixon and Ford, while (incorrectly, as it will turn out) treating Reagan and George H.W. Bush as especially relevant, Republicans would have controlled the White House for twenty-one of the relevant past thirty-seven years, or back up to 57%, begging the question of why Democratic appointees control the circuit courts.  On the other hand, if we discount Carter as a meaningful influence on circuit-court composition, we reject half of Calabresi's court-packing thesis:  that the composition of the circuit courts is a function of President Carter and Senators Schumer and Reid's court-packing.  As it turns out, Carter is just as irrelevant to the composition of the circuit courts today as Nixon and Ford; his "court-packing" has nothing whatsoever to do with Democratic control of those courts.

Carter appointed a great many judges to the circuit courts, fifty-six, in part because a bill enacted during his tenure with robust Republican support created a great many new circuit judgeships.  However, of these fifty-six judges, only one is in active service on the courts of appeals, a now eighty-six-year-old Stephen Reinhardt.  The others all retired, took senior status, died, or became Supreme Court Justices.  At the end of Carter's presidency in 1981, Carter appointees held a whopping 42% of the 132 active judgeships on the courts of appeals.  By November 2005, only twenty-four years later, Carter appointees held just seven of the 179 active judgeships on the courts of appeals, or a little less than 4%.  Today, the number is 0.6%.  As with Nixon and Ford, death and the attractions of senior status rapidly eroded Carter's influence on the composition of the lower courts.  The composition of those courts simply has nothing to do with Carter's wealth of '70s appointments, whether or not those appointments should be deemed the fruits of a court-packing scheme.

Having discounted Carter, Nixon, and Ford, should we expect the composition of the courts to reflect Republican control of the White House for 57% of the years between 1981 and today?  Again, no.  Reagan, like Nixon, was a colossal success as a judicial appointer, appointing three Justices to the Supreme Court and eighty-three judges to the circuit courts to just under half of the 167 circuit judgeships that existed by the end of his tenure.  He was certainly no victim of Democratic defensive court-packing.  Today, however, what were once eighty-three active judges comprising half of the circuit court judgeships have become ten active judges comprising 5.6% of the circuit court judgeships.  

This isn't Democrats' fault, of course; Reagan's appointees simply died or retired.  Indeed, in circuits that Republican appointees do control, the reason is often that Reagan appointees have stuck for longer than most.  The Seventh Circuit has an eighty-one-year-old Reagan appointee, a seventy-nine-year-old Reagan appointee, a sixty-nine-year-old Reagan appointee, and until recently had a seventy-eight-year-old Reagan appointee, Judge Posner.  Because of the unusual declination of these judges to take senior status, Democratic appointees never gained a majority on the Seventh Circuit in the Obama years.  Two of the Fifth Circuit's thirteen active judges are Reagan appointees, both appointed to the court at unusually young ages.  A more typical story is the Ninth Circuit, where six Reagan appointees have died, three have taken senior status, and one, Judge Kozinski, who joined the court at thirty-five and is only sixty-seven today, retains active status amongst a court of twenty-nine.

Reagan, then, is barely relevant to the present composition of the circuit courts, like the presidents before him; between him, Carter, Ford, and Nixon, presidents who collectively held the White House for twenty of the past forty-nine years, we can account for only 6.7% of the active circuit judges.  Assuming George H.W. Bush is still relevant to the composition of the circuit courts, Republicans held the White House for only thirteen of the relevant past twenty-nine years, or 45%.  

Bush, however, is no more relevant than Reagan.  Like Reagan, he was not a victim of Democratic obstruction; he appointed forty-two judges to the circuit courts, or 23%, a robust number for a presidency that lasted four years.  Today, though, only nine active judges are left, comprising 5% of the active judgeships.  Over half of the thirty-three other appointees serve in senior status; the rest have retired or died.

Collectively, Bush and Reagan account for 10.6% of the active circuit-court judgeships; their predecessors account for only 1.1% more.  The remaining overwhelming majority of active judges were appointed by Clinton, George W. Bush, Obama, and Trump, in a twenty-five-year period when Democrats controlled the White House 64% of the time.  Thus, we should expect to see majority-Democrat circuit courts, as we in fact do.  As it turns out, today Republican appointees hold 46% of the filled active judgeships (seventy-six of 166), which is just about what you'd expect, if not indeed better, given the dwindling influence of the Reagan/Bush presidencies and Democratic dominance in the White House thereafter.

Democratic dominance in the years that are actually relevant to circuit-court composition is not the only reason for Democratic majorities on the lower courts, however.  The other reason is that the last President was a two-term Democrat.  Professor Calabresi claims that besides Carter's "court-packing," the other driver of Democratic dominance on the circuit courts was Harry Reid's use of the filibuster in the Bush years and abolition of the filibuster for judicial nominees in the Obama years.  Yet in spite of this manipulative use of the filibuster, Bush actually appointed more circuit court judges than Obama:  sixty-two, to Obama's fifty-five, over the same length of tenure.  And in spite of the filibuster's abolition in 2013, Obama would only succeed in appointing two judges in 2015 and 2016, thanks to Republican blue-slipping and control of the Senate.  

It's true that Democrats blocked a few more Bush nominees than Republicans blocked Obama nominees.  Bush ultimately lost five nominees to the filibuster, nine others to stall tactics, and six to blue slips, for a total of twenty.  (I omit from my list of stalls three nominations made in late-July through September of 2008, which fell afoul of the so-called Thurmond Rule.)  By my count of the nominees on this list of Obama's nominations, which omits Abdul Kallon's nomination to the Eleventh Circuit, thirteen of Obama's circuit court nominees never got a vote, whether because of the blue slip, filibustering, or stalling in committee.   

That's a difference of only seven, and the Obama count omits the many vacancies that never even got nominations in the Obama years because of the threat of blue slips, like the two long-open Texas vacancies on the Fifth Circuit that are only now being filled.  It should also be noted that Bush filled a number of the vacancies for which his initial nominees were rejected.  I see no evidence of a material difference between Republican obstruction in the Obama years and Democratic obstruction in the Bush years; the two probably all but entirely canceled each other out (and both, given the quality of the nominees we lost, are to be lamented).

The Obama factor actually driving Democratic majorities on the circuit courts is much simpler than a comparative advantage at confirming his judges:  having served as President more recently, his judges haven't retired yet.  Of his fifty-five appointees, just two have retired; fifty-three remain.  Of Bush's sixty-two appointees, sixteen have already retired, been elevated, taken senior status, or died; forty-six remain.  Seven took senior status or retired in the Obama years, and Obama replaced four of them.  This drop-off, which Obama's appointees have yet to embark on, has given Obama's slate of nominees a numerical advantage over Bush's that Harry Reid and Chuck Schumer could not.

Finally, Republicans are partly the unlucky victims of judicial maldistribution.  A chart in Calabresi's paper shows that by 2016, before Trump took office, Republican appointees still held 44% of the filled active judgeships on the circuit courts.  (As of today, that's up to 46%; Trump and his nine appointees are already moving the needle towards parity, though half have replaced Republican appointees who retired post-election.)  However, as of the same date Republican appointees held majorities in only four of the thirteen circuits.  How come?  Because their judges were inefficiently distributed.  Republican appointees held supermajorities in several circuits, while Democratic appointees held majorities everywhere else.  

For example, Republican appointees in 2016 still held eight of the nine active non-vacant judgeships on the Eighth Circuit, because, whether due to luck or other factors, only one Eighth Circuit judge retired in the Obama years until 2015, by which time the Senate was  closed for judicial nominations.  By contrast, George W. Bush made six appointments to the relatively small Eighth Circuit, four of which are in active service still.  This is great for Republican control of the Eighth Circuit, but Republicans would have been better off had more judges retired from the Eighth Circuit in the Obama years and fewer retired elsewhere, or if fewer judges had retired from the Eighth Circuit in the Bush years and more retired elsewhere.

Besides the Eighth Circuit, as of 2016 Republican appointees also held two thirds of the filled seats in the Sixth and Seventh Circuits and nearly two thirds in the Fifth.  These supermajorities were a function of vacancy timing and other chance factors: eight Bush appointments in the Sixth to Obama's two, two Bush appointments in the Seventh to Obama's one (partly thanks to Wisconsin's Republican Senator keeping a vacancy open for seven years of Obama's presidency) and the unusual vitality of Reagan's Seventh Circuit appointees, and seven Bush appointments in the Fifth to Obama's three (partly a function of Texas's Senators barring Obama from making appointments to old vacancies), plus the continued active service of two unusually young Reagan appointees.  

Here too, Obama was simply given unusually few chances to appoint judges, and when he had opportunities, they sometimes were blocked; Bush, on the other hand, was given a disproportionate abundance of opportunities.  In most of the other circuits, however, Obama appointees built slim Democrat-appointee majorities.  It isn't, for the most part, Democrats' fault that the vacancies Bush got to fill were more geographically concentrated than Obama's; it just happened that way.  If a fraction of Bush's twenty-one appointments to the Fifth, Sixth, and Eighth Circuits had ended up on the closely divided First, Third and Tenth Circuits instead, Democratic appointees would only control six of thirteen circuits instead of nine.

Republican appointees' minority position on most of the circuit courts has nothing to do, then, with President Carter's "court-packing," which ceased to influence the composition of the courts long ago, or with Schumer and Reid's "court-packing," which was  counterbalanced by Republican filibustering in Obama's first term, Republican blue-slipping, and all-out Republican obstruction in the last quarter of Obama's presidency.  Rather, it's a function of the death and retirement of Nixon, Ford, Reagan, G.H.W. Bush, and even G.W. Bush appointees; Democratic dominance of the White House in the years that actually matter to circuit-court composition, the recent ones; and bad breaks in the geographical concentration of vacancies in the G.W. Bush years and geographical diffusion of vacancies in the Obama years.

All of this should be ameliorated to a large degree in Trump's first term, and should be subsumed if the Republicans hold the White House in 2020.  Thirty-five aging Clinton appointees, plus one Carter appointee, remain in active service; so do fifty-three younger Obama appointees.  If history is any precedent, in eight years, twenty-four years out from the end of Clinton's presidency, there will be very few active Clinton appointees left, as there were very few Carter appointees left twenty-four years after the end of his presidency (nine out of fifty-six), and few Reagan appointees left twenty-four years after the end of his presidency (seventeen out of eighty-three).  And if history is any precedent, a fair number of Obama appointees will have retired in eight years, just as over a quarter of G.W. Bush appointees have retired to date.

Of course, Clinton and Obama appointees may well decline to retire during Trump's presidency.  So far, Trump has filled four vacancies created during his presidency; each of those vacancies was created by the retirement or elevation of a Republican appointee.  Of the other six post-election vacancies Trump has made nominations for, all but two of those were created by the retirement of a Republican appointee, and one of the Democrat-appointee retirements, Judge Frank Hull, is quite conservative, while the other is eighty-three years old.  Clinton and Obama appointees do not seem interested in having Trump fill their seats, while Bush and Reagan appointees seem very interested.  That, however, is not court-packing, whatever else it might be called.  And in any case, the Clinton appointees cannot serve forever; the average age of the active Clinton appointees (excluding Hull, who will retire upon the appointment of a successor) is seventy, and many are much older than that.

In sum, the Obama judicial legacy that Calabresi wants to undo is not the fruit of court-packing, but the natural (though artificially slight, thanks to Republican maneuvering) fruit of a recent two-term presidency.  To undo it, Republicans need only do what Democrats did to undo the Reagan/G.H.W. Bush judicial legacy, or the G.W. Bush legacy:  namely, win multiple elections.  Barely veiled attempts at court-packing historically haven't been conducive to that goal.   But if Republicans want to take political advice from someone whose idea of political salesmanship is to complain about invisible hordes of Carter appointees swamping the rightful Nixon/Ford majority, they could do worse things, I guess.

Talking Gibberish in Cyan Inc. v. Beaver County Employees Retirement Fund

Under Rule 6 of the Rules of Civil Procedure, the last day of a period is included in counting time, unless it is a Saturday, Sunday or legal holiday.  Legal holidays are defined, and only defined, in subparagraph (a)(6) of the rule.  Suppose the rule read as follows: "When the period is stated in days . . . include the last day of the period if it falls on a weekday, except as provided with respect to legal holidays in subparagraph (a)(6)."  How would you interpret that sentence?

At first, I imagine, you would attempt to make sense of it by seeing what Rule 6(a)(6)  "provided" on the subject of legal holidays and counting time.  When you realized that Rule 6(a)(6) says nothing whatsoever about counting time, I think you would understand the sentence as a bit of sub-literate gibberish, albeit gibberish obviously intended to convey the information that one should include the last day of the period if it falls on a weekday, except for legal holidays as defined in Rule 6(a)(6).  Likewise, suppose someone wanted to explain Jewish dietary law's prohibition on eating dairy with meat to you, and wanted to enlist the help of a particular dictionary's definition of meat in clarifying the definition.  (Poultry counts; fish doesn't.)  If that person said, "Jewish people can eat anything with dairy, except as provided in Webster's Third with respect to meat," you would probably think he didn't know English very well.  You would understand, though, that he meant Jewish people can eat anything with dairy, except for meat as defined in Webster's Third.

What sentences like that actually mean, though, is something quite different.  The trouble isn't that "provided" can only refer to substantive rules, as opposed to definitions; for example, "all terms in this statute have their ordinary meanings except as provided in definitional section q" is perfectly good English.  Likewise, Rule 6(a)(6) certainly "provides" something with respect to legal holidays (and so does Webster's Third with respect to meat).  But what it provides with respect to legal holidays is only the phrase's definition, such that to say "include the last day of the period if it falls on a weekday, except as provided with respect to legal holidays in 6(a)(6)" is to say "include the last day of the period if it falls on a weekday, except that 'legal holiday' means New Year's Day, Thanksgiving, Christmas, Independence Day . . . ."  

That is nonsense, so so too is the rule it glosses.  The problem with drafting the rule that way is what can only be described as a functionally illiterate misuse of "except as provided with respect to."  The drafter of the rule would seem to think that "except as provided with respect to legal holidays in 6(a)(6)" means "except for the set of days described by 6(a)(6) with respect to legal holidays."  But "except as provided with respect to legal holidays in 6(a)(6)" actually means, in any literal or colloquial sense, "except for what 6(a)(6) says about legal holidays."  And what 6(a)(6) says about legal holidays—just what "legal holiday" means—is not a comprehensible exception to the rule that when counting a period, you include its last day if it falls on a weekday.  Precisely, however, because the rule as hypothetically drafted is nonsense, we would have to read it as if its drafter had written what it definitely doesn't mean—"except for legal holidays, as defined in 6(a)(6)"—because that's the only thing its drafter could have had in mind in drafting an exception to a time-counting rule that cross-referenced the definition of legal holidays.

We should be careful about imputing subliterate gibberish to Congress, though if Congress undeniably writes a bit of subliterate gibberish, we must try to make sense of what it meant, or as a textualist would say, what Congress appears to have meant (the whole aim of textualism being, as I've repetitively argued here, determining Congress's apparent intent from what it wrote).  After all, it's unlikely that Congress is that bad at English.  So if we encounter a statute that appears to say, "the following is a [non-definitional] rule, except as provided in this [definitional] section with respect to a phrase/word not in the rule," we should make certain that the cross-referenced section isn't doing something non-definitional that could provide a sensible exception to Congress's non-definitional rule, thereby allowing us to read "except as provided" in a normal way.  Otherwise, Congress will have said that such and such is a non-definitional rule, except that a term not even in the rule means such and such—which, as I say, is gibberish, albeit gibberish whose intended meaning can be deciphered.

It is this precise sort of gibberish that the petitioners in Cyan, Inc. v. Beaver County Employees Retirement Fund (a case to be argued this morning) impute to Congress.  15 U.S.C. 77v(a) provides that federal and state courts shall have concurrent jurisdiction over lawsuits under the Securities Act of 1933, subject to one exception, the scope of which is the subject of Cyan.  The exception, along with the provision it's contained in, reads as follows: 

The district courts of the United States and the United States courts of any Territory shall have jurisdiction of offenses and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and, concurrent with State and Territorial courts, except as provided in section 77p of this title with respect to covered class actions, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter.

Section 77p of Title 15 provides three things with respect to "covered class actions," in the following order: 

First, subsection 77p(b) provides that no "covered class action" based on state law can "be maintained in any State or Federal Court" if it alleges a material misstatement, material omission, manipulative or deceptive device, or contrivance, in connection with the sale of certain securities.  The Supreme Court has described this as a "preclusion provision" rather than a preemption provision because it does not preempt state law regarding these sorts of allegations outside the "covered class action" context.  

Second, subsection 77p(c) provides that "[a]ny covered class action brought in any State court involving a covered security, as set forth in subsection (b)," may be removed to federal court.  (How far that grant of removal jurisdiction goes is also disputed by the parties, as well as the government, whose interpretation I defend briefly at the end of the post.)  

Third, paragraph 77p(f)(2) provides a complicated definition of "covered class actions," which includes, in part, any class action involving 50 or more members in which common questions of law or fact predominate over individual ones.

Cyan Fund argues that it's this last provision of section 77p about "covered class actions," their definition, that "except as provided in section 77p . . . with respect to covered class actions" invokes, not any of the substantive provisions of 77p regarding covered class actions that might be thought to provide actual exceptions to state courts' concurrent jurisdiction over Securities Act claims.  That is, they read "jurisdiction . . . concurrent with State and Territorial courts, except as provided in section 77p . . . with respect to covered class actions" to mean "jurisdiction . . .  concurrent with State and Territorial courts, except with respect to covered class actions as defined in section 77p(f)(2)."  

Cyan Fund makes this surprising move, in short, because all the other candidates for cross-reference are off the table, or so they say.  First, the "preclusion" provision has nothing to do with jurisdiction, but rather commands merits dismissals of certain covered class actions. And even if it did concern jurisdiction, it applies equally to state and federal courts. It therefore can't be the exception to state courts' concurrent jurisdiction in section 77p that Congress meant to cross-reference.** 

** This last point seems a red herring to me.  The "except as provided" clause can easily be read as an exception to both state and federal courts' jurisdiction; the statute says that federal courts shall have jurisdiction, concurrent with state and territorial courts, except as provided with respect to covered class actions in section 77p, over actions brought to enforce liabilities or duties created by the Securities Act.  Why can't, given its placement, the except clause be read as an exception to both sets of courts' jurisdiction just as easily as an exception to state courts' concurrent jurisdiction alone?  

As for the removal provision, they say it too has nothing to do with state courts having concurrent jurisdiction in the first place.  Besides, they add that even if removal jurisdiction might be seen as an exception to full-throated concurrent jurisdiction, it turns out that section 77v also has an anti-removal provision which cross-references the exception to that provision in 77p(c) ("[e]xcept as provided in section 77p(c)").  That cross-reference would seem to make a cross-reference to 77p(c) in the concurrent-jurisdiction provision unnecessary, as well as misplaced.

Thus, by process of elimination, what section 77v must be talking about when it provides for concurrent jurisdiction except as provided in section 77p with respect to covered class actions is just the definition of covered class actions.  And what Congress must have really meant is to provide for concurrent jurisdiction except over covered class actions, as defined in the definition that section 77p "provides."  That's the argument.

Cyan's insistence that Congress would never mix concurrent jurisdiction with removal jurisdiction, or rules of "preclusion" that forbid certain suits from being "maintained" in state court at all, or engage in surplusage, speaks well for its respect for Congress's legal acumen.  But in its zeal to portray Congress as a perfect student of the Court's current narrow understanding of jurisdictionality (an understanding that only fully emerged a decade after Congress enacted the statute in question), it seems to me that Cyan's made out Congress to have made a much more fundamental error than the faux pas of thinking of removal jurisdiction, or unusually peremptory bars to actionability, as exceptions to concurrent jurisdiction.  

That fundamental error, of course, is the error of speaking in subliterate gibberish.  For it isn't, as I've explained above, good English to say that state courts shall have concurrent jurisdiction except as provided with respect to covered class actions in section 77p, if what one means is that state courts shall have concurrent jurisdiction except over covered class actions as defined in section 77p.  If 77p's definition of covered class actions is what 77v is talking about when it carves out an exception for what 77p "provided" about covered class actions, what Congress literally said was that state courts shall have concurrent jurisdiction, except that a covered class action is defined as a class action involving 50 members, that etc.  

That is nonsense; the mere definition of covered class actions is in no way an exception to concurrent jurisdiction.  It certainly is something that 77p "provides" with respect to covered class actions, and to the extent Cyan suggests the textual objection to its argument is that it's not, it's kicking at a straw man.  The problem, rather, is that the definition has nothing to do with concurrent jurisdiction.  Whereas removal jurisdiction or a merits bar to certain covered class actions are not exceptions to concurrent jurisdiction in a strict legal sense, the definition is simply a nonsensical exception to concurrent jurisdiction in any sense, like saying "we sell cars in every major color, except that purple is the color made by combining red and blue" when what one means is that one sells cars in every major color except for purple, which is the color, in case one didn't know, made by combining red and blue.  

In order to understand Congress to have actually excepted covered class actions from concurrent jurisdiction, rather than nonsensically providing that their definition is an exception to concurrent jurisdiction, we have to read "except as provided with respect to covered class actions in section 77p" to mean "except for the thing, covered class actions, with respect to which something (a definition) is provided in section 77p."  But that is not, as any literate English speaker knows, what "except as provided" means; it is only, at best, an illiterate yet comprehensible misuse of "except as provided."  Because we should assume that Congress is not functionally illiterate, we should assume that Congress was referring to the substantive provisions in 77p regarding covered class actions, which reasonable people, if not a certain elite subset of lawyers, can understand as exceptions to concurrent jurisdiction over Securities Act suits.

Cyan's response to this is to claim that Congress actually uses "except as provided in" in this way all the time, which is supposed to show that it's perfectly good English.  (Even if it didn't, it could tend to show that Congress really is confused about what "except as provided in" means; either works.)  Cyan says that while respondents and the government claim that "except as provided in Statute X" must refer to some "self-operative limit" in Statute X, sometimes it "borrow[s] a term or concept from another provision, which requires some translation to be incorporated into the relevant statute."  

Cyan primarily leans on the example of a clean-hull statute that regulates "persons" in various ways.  The definition of "person" includes any "instrumentality of the United States, except as provided in 3802(b)(2) of this title," but when we arrive at 3802(b)(2) we don't find a definitional provision, but instead are told that the EPA "may" apply the requirements of the clean-hull statute to federal vessels if the agency operating the vessels agrees.  From this, they say, we can infer that government vessels aren't regulated "persons" unless the EPA says so.  Doesn't this show that "except as provided" is sometimes used non-literally to refer to some recapitulated version of what a cross-referenced section actually "provides"?

Not at all.  Read literally, the definition of persons says that a regulated person includes any instrumentality of the United States, except that the EPA may or may not, in consultation with agencies, apply the requirements of the statute (which apply to "persons") to government vessels.  Now, if government vessels were persons, the statute's requirements would apply to government vessels whether or not the EPA said so, so it must follow that government vessels aren't persons unless so designated.  That necessarily follows, however, from the literal and not-at-all nonsensical meaning of what Congress said; 3802(b)(2) wasn't "translated" into a definitional exception in order to make sense of "except as provided," but logically entailed a definitional exception.  Nothing, on the other hand, follows at all from saying that state courts have concurrent jurisdiction over Securities Act suits, except that a covered class action is a class action with predominant questions and 50 members.  It especially does not follow from saying so that state courts have no concurrent jurisdiction over actions so defined.

Cyan's other examples of unconventional uses of "except as provided" are similar flops.  A statute provides that inactive-duty training is defined not to include correspondence-course study, "except as provided in 206(d)(2) of this title."  206(d)(2), however, allows for compensation for certain correspondence courses under the auspices of compensation for inactive-duty training.  Read literally, the statute means that inactive-duty training, which is compensable, doesn't include correspondence-course study, except that you can get paid for taking certain correspondence courses.  Because those correspondence courses are only compensable by virtue of compensation for inactive-duty training, it necessarily follows that they are inactive-duty training.  206(d)(2) is not "translated" by the magic of cross-reference into a definitional exception; it entails one given the literal meaning of the cross-reference.  

Even, though, if you see that as translation of a sort, it's a translation fueled by logical entailment, not a grasping for what Congress must have meant but didn't say.  Certain substantive provisions being logically incompatible with a definition that cross-references those provisions as exceptions, the substantive provisions must be "translated," if you like, into exceptions to the definition.  What Cyan fails to find in the entire U.S. Code is a single other statute in which Congress does the reverse: say "the following rule obtains, except as provided with respect to x in section y, a definition of x," and mean "except for x as defined in section y."  That would require "translating" the cross-referenced definition into the defined term itself.  In fact, Cyan doesn't offer an example of anyone ever using "except as provided with respect to x" in this bizarre way, probably because it's never been done; people who are sufficiently ignorant of English to be this confused about what "except as provided" can mean don't use legal jargon like "except as provided," and people who do use legal jargon are all sufficiently conversant in English not to make the mistake.

Cyan's only good example of this sort of usage is a sentence that no one ever wrote before Cyan invented it:  a parking sign that reads "No parking, except as provided in 5 U.S.C. 6103 with respect to legal holidays," a statute that merely provides a list of legal holidays and says nothing about parking.  Wouldn't one have to read that to mean no parking, except on legal holidays as defined in section 6103?  

Of course, once one realized to one's bewilderment that 6103 said nothing about parking.  But that only shows that we would try to make some sense out of a nonsensical sign, not that the sign makes sense.  What the sign means, like the hypothetical at the beginning of this post, is no parking, except that legal holidays include Christmas, New Year's, Thanksgiving, etc.  That can't be what was meant, so we assume the writer of the sign can't write and thinks that "except as provided with respect to legal holidays in 6103" is an acceptable way to say "except for legal holidays, as defined in 6103."  It's not, though, and if 6103 said anything at all about parking on legal holidays, or could even merely be arguably read to, we would read the sign to refer to whatever 6103 said about parking because we assume basic literacy on the part of sign-writers.  All the more so of Congress.

Finally, one word on a much closer dispute between the parties and the government, namely the scope of 77p's removal provision.  77p(c) says that "[a]ny covered class action brought in any State court involving a covered security, as set forth in subsection (b), shall be removable."  77p(b), the preclusion provision, bars covered class actions under state law asserting misstatements, omissions, contrivances or manipulative devices in the sale of covered securities.  The government argues that 77p(c) provides for the removal of any covered class action involving those sorts of claims about the sale of covered securities, whether or not the claims are made under state or federal law.  

Respondents, in response, say that 77p(c) defines removable actions as those "set forth in subsection (b)," and subsection (b) only talks about and bars state-law actions; thus, 77p(c) only permits removal for purposes of enforcing that bar, in cases that at least present a mix of state- and federal-law claims.  To adopt the government's reading (which includes subsection (b)'s subject-matter limitations to claims about deceit in the sale of covered securities), they argue, is to arbitrarily apply only half of what's "set forth" in subsection (b).

I think that is wrong.  The phrase preceding the cross-reference to subsection (b) is "involving a covered security"; what is "set forth in subsection (b)" is what it means for a covered class action to involve one.  The government accepts that actions are only removable under 77p(c) if they involve covered securities in the fashion subsection (b) talks about.  The requirement, for preclusion purposes, that claims be brought under state law is not a part of what subsection (b) "sets forth" on what it means for a covered class action to "involve" a covered security; it's what it "sets forth" on another subject (the state-law-specific scope of the preclusion bar).  A covered class action brought under federal law can involve a covered security just as much as one brought under state law, and is just as much a covered class action.  I am inclined, then, to think the government is right; any covered class action that involves the sorts of allegations about covered securities sales that 77p(b) describes is removable from state court, largely obviating Cyan's policy concerns about runaway state-court class actions on a much sounder textual ground.

Patchak v. Zinke Oral Argument Recap, and a Couple Suggestions on What the Court Should Do with "and Shall Be Promptly Dismissed" in the Gun Lake Act

Today the Supreme Court heard oral argument in Patchak v. Zinke.  Patchak is a case about everyone's favorite doctrine, the Klein doctrine, which says—this is disputed by academics, but not by the parties, at least not comprehensibly so—that while Congress may make new law applicable to pending cases, and even limit that new law's applicability to a pending case, it may not direct results of cases under old law without impinging on the federal courts' powers under Article III.  That's how the Court understood the doctrine a year ago in Bank Markazi v. Peterson, at any rate.

In Patchak, Patchak sued the Department of Interior under the APA to challenge its decision to take title to a tract in Michigan known as the Bradley Property on behalf of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians.  The government claimed it hadn't waived its sovereign immunity from this sort of suit; the Supreme Court held in Patchak I that it had.  

Congress responded by passing the Gun Lake Act, section 2(b) of which provides that "an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) [the Bradley Property] shall not be filed or maintained in a Federal court and shall be promptly dismissed."  The D.C. Circuit held that the Gun Lake Act constitutionally stripped federal jurisdiction over Patchak's suit.  Patchak petitioned for and somehow obtained certiorari on whether, as he put it, "a statute directing the federal courts to 'promptly dismiss' a pending lawsuit . . . without amending underlying substantive or procedural laws [] violate[s] the Constitution's separation of powers principles."

Patchak's briefs were, to charitably understate matters, extremely unhelpful on what about this statute violated Klein.  The relevant sections of his briefs consist of string-cites of every high-sounding generality in a Supreme Court opinion about the separation of powers in the last 200 years, interspersed with occasional empty assertions about the statute actually on review.  (E.g., "the principles recognized and secured in the Court's prior decisions instruct that the Gun Lake Act invades and weakens the judicial power, and thereby violates the separation of powers.")  

An amicus brief in support of Patchak signed by Steve Vladeck and joined by Prawfsblawgger Howard Wasserman and such eminent professors as Dean Chemerinsky, David Strauss, and Ernest Young provided much more concrete guidance.  This brief, rather candidly and self-defeatingly, allowed that the "first clause" of section 2(b), the part that said a suit relating to the Bradley Property "shall not be filed or maintained in a Federal court," was constitutional.  The problem, its signatories argued, was that section 2(b) didn't "only remove[] federal jurisdiction," which would have been fine; when it went on to say that cases relating to the Bradley Property "shall be promptly dismissed, it "additionally command[ed] the federal courts to dismiss all cases" as to which jurisdiction had been removed.  That isn't okay, they argued, because it deprived federal courts of jurisdiction to decide that jurisdiction had been removed under the "shall not be filed or maintained" clause, and simply dictated a brute result.

With respect to Vladeck et al., this is rather like arguing that section 1332 would violate Article III and the separation of powers if it said that federal courts must dismiss suits brought under 1332 that don't involve the requisite amount in controversy, as opposed to "only" saying, as it now does, that jurisdiction only extends to diversity suits that do involve the requisite amount in controversy.  Of course federal courts must dismiss suits over which they have no jurisdiction; what else are they supposed to do with them?  Such a clause in 1332 would be as inoffensive as it would be unnecessary.  But Patchak's briefing being what it was, that was the thread by which his case was hanging going into oral argument.

At oral argument, the majority of the Court snipped the thread.  Clearly convinced that the addition of "shall be promptly dismissed" to a jurisdictional bar couldn't sink that bar (whether because it could be severed, because it could be deemed surplusage, or because it could simply be deemed the necessary consequence of a jurisdictional bar), a number of Justices repeatedly asked Patchak's counsel to say whether 2(b) would be unconstitutional without the (putatively) offending phrase, and if so why.  Patchak's counsel adamantly insisted that 2(b) would be unconstitutional if it merely stripped jurisdiction over suits relating to the Bradley Property without commanding their dismissal, but was completely unable to articulate a reason why.  Recounting in any detail the various attempts he made to give a reason why would be unkind, but they generally circled around the mantra that even if Congress had made new jurisdictional law and applied it to Patchak's pending case, the Court still had to ask whether Congress was exercising judicial power in doing so.  How Congress could possibly be exercising judicial power in making a new jurisdictional bar, and how the Court was to decide if Congress had done so in enacting the Gun Lake Act, Patchak's counsel never explained.

So the Gun Lake Act will survive, and deservedly so; there was never anything really the matter with it.  There is, however, the niggling detail of just what to say about "and shall be promptly dismissed."  I want to suggest a couple ideas, the first of which should appeal to the Chief Justice, who seems to be the only member of the Court that's truly worried about the constitutionality of the statute.

The Vladeck amicus brief claims that "and shall be promptly dismissed" deprives federal courts of jurisdiction to determine whether "shall not be filed or maintained" strips their jurisdiction over Bradley Property-related actions; they must dismiss such actions and enter judgment for the government whether they think they have jurisdiction or not.  This strikes me as a rather uncharitable reading of section 2(b), and certainly one that flouts the doctrine of constitutional avoidance.  

Having provided that Bradley Property-related suits "shall not be . . . maintained" in federal court, Congress had already mandated their dismissal before it said so; how could a court heed the command that such suits shall not be maintained in federal court without dismissing them?  The addition of "and shall be promptly dismissed," rather than mandating dismissal prior to or independently from a jurisdictional determination, can be read to merely confirm the jurisdictional nature of "shall not be filed or maintained," which otherwise might be read as a claim-processing rule under the Court's clear-statement rule for deciding when jurisdictional statutes are really jurisdictional.  One might say that this reads 2(b)'s second clause to contain a silent "therefore"—"shall not be filed or maintained in federal court and shall therefore be promptly dismissed"—that clarifies Bradley Property-related suits are to be dismissed because they "shall not be maintained in federal court," i.e., because there is no federal jurisdiction over them.  I do not think it does much violence to 2(b) to suggest that this "therefore" is nascent in the statute.

Such a parsimonious reading of mandatory language should be familiar to Chief Justice Roberts, who, having determined in NFIB that the ACA would be unconstitutional if it contained an insurance mandate, invoked avoidance to read the ACA's seeming command "that individuals 'shall' maintain health insurance" as "a condition . . . that triggers a tax," not as "a legal command to buy insurance."  I tend to find that saving construction more plausible than most; since the only legal consequence of "mandating" people to buy insurance under the ACA was requiring them to make a relatively small payment to the IRS if they didn't, it was quite possible to read the mandate as precatory.  I also have never understood what great difference the saving construction made; couldn't the mandate have been severed from the tax/penalty and practically produced just the same result?  

But in any event, I think my reading of "and shall promptly be dismissed" is even more plausible than Roberts' reading of the mandate; whereas Roberts read the ACA's "shall" to mandate nothing at all, I would read "and shall be promptly dismissed" to mandate dismissal, on the jurisdictional grounds provided earlier in the sentence.  This seems to me not only a permissible reading of section 2(b), but its most natural reading.  After all, if 1332 said that federal courts had jurisdiction of diversity suits with an amount-in-controversy in excess of $75,000, and shall dismiss suits with an amount-in-controversy of $75,000 or less, would we read the "shall dismiss" clause to deprive district courts of jurisdiction to determine their jurisdiction in cases with an amount-in-controversy of $75,000 or less, or simply as the inverse of the jurisdictional grant?  I should think the latter, and if 1332's constitutionality turned on it, we would be compelled to read it that way.  So too with the Gun Lake Act.  

This is not only correct as a matter of avoidance and, I would suggest, common sense; it's also correct as a matter of anti-surplusage.  For the Vladeck reading of section 2(b) renders "shall not be filed or maintained in federal court" a nullity that federal courts cannot apply before applying the "and shall be promptly dismissed" clause; the claim quite literally is that the latter clause "does not allow" federal courts to decide if Bradley Property-related suits are jurisdictionally barred by the former clause.  Were that so, why did Congress bother to write "shall not be filed or maintained in federal court"?  If the courts are not even allowed to apply that language, for whom was it written?  My reading, on the other hand, not only gives effect to that language, but gives effect to "shall be promptly dismissed" as well; for me, that phrase confirms the jurisdictionality of "shall not be filed or maintained in federal court," which could otherwise potentially be read as a non-jurisdictional claim-processing rule.

Given all that, I would find a holding that section 2(b) contains a brute command of results overlaid on top of a jurisdictional bar that federal courts are pretermitted from applying, as opposed to a garden-variety jurisdictional bar and some language confirming that bar, all but indefensible.  It isn't what 2(b) means and it certainly isn't what 2(b) unambiguously means, so if unconstitutional or even possibly so, that interpretation of 2(b) must be avoided.  

However, if 2(b) does command dismissal of Bradley Property-related suits independent of their extrajurisdictionality under 2(b) itself, that command could be severed as unconstitutional.  It is critical to note, however, that that would be in no way a win for Patchak.  Patchak's suit would still be barred by the perfectly constitutional jurisdictional provision that his suit may not be maintained in federal court, and the judgment below affirming the dismissal of that suit for lack of subject-matter jurisdiction would be affirmed.  To be sure, the Court sometimes "affirms" a judgment it disagrees with, for remedial reasons, because it agrees with the constitutional holding of an opinion below, so conversely it might "reverse" the D.C. Circuit's judgment because it disagrees with the D.C. Circuit's opinion insofar as it found no constitutional violation.  As Will Baude has argued, however, the Court should really cut this sort of thing out; a constitutional holding isn't itself a judgment or a part of a judgment, but only a reason for it.

Assuming the Court affirmed, it isn't obvious to me how the Court could write an opinion in which the invalidation and severing of the "shall be promptly dismissed" clause wouldn't be one huge dictum, given that the Court's judgment would ultimately rest on the ground that Congress constitutionally forbade Patchak's suit from being "maintained" in federal court, whether or not it acted constitutionally in proceeding to further mandate its dismissal.  And even if the Court's severance of the "shall be promptly dismissed" clause were deemed a holding, its severing that clause would have no effect whatsoever on how any district court adjudicated suits relating to the Bradley Property; district courts would continue to dismiss those suits for lack of jurisdiction.  The emptiness of such an undertaking underscores the wisdom of the Chief Justice's course in NFIB; why go to the trouble of invalidating a phrase in a statute that has no real legal consequence?

Supreme Court 2017 Statutory Term in Preview: Definitional "Ambiguity" in Digital Realty Trust, Inc. v. Somers, Part 1

The subject of the following series of posts will again be textualism, and what I intend to again persistently asseverate, to borrow a phrase from a passage of Henry James's dialogue (the character saying it is supposed to be rather simple!), is that textualism is a less constraining methodology than some of its advocates claim, but a more constraining one than some of its false friends want it to be.  The particular textualist problem I want to address here is statutory definitions that seem to make a peculiar meaning out of uses of the defined terms to which they apply.  

This problem is the subject of the statutory blockbuster (I speak unironically) of the upcoming Supreme Court term, Digital Realty Trust, Inc. v. Somers, as it was of the Court's decision in Bond three years ago, as it was in part, in a fashion that escaped almost everyone's attention, of the Court's decision one year ago in Puerto Rico v. Franklin California Tax-Free Trust.  I will propose a middle course between the definitional nihilism that insists a definition is a definition no matter what, on the one hand, and the definitional immolation of Bond on the other—the course that Justice Thomas steered for the Court in Franklin California Tax-Free Trust and that Justice Scalia steered for the Court in Utility Air.

That middle course, in sum, is this.  Assuming a typical definitional clause, a statute can never be ambiguous on whether a statutory definition applies to that statute's use of the defined term that definition defines.  So long as a statute says where its definition applies—"in this section," "in this chapter," "in this Act"—the definition unambiguously applies where the statute says it does.  "In this section/chapter/Act, the following definitions shall apply" is not ambiguous language, and such language is the only language relevant to deciding whether a statute's definition textually applies to a use of a defined term.  Uses of the defined term that don't seem to match the definition only tend to show that Congress may have made a scrivener's error in using a term elsewhere defined.

However, a statute's application of a definition to a particular use of a defined term may very well be a correctible scrivener's error.  Scrivener's errors of this sort happen often; they happen when drafters use a term and forget how that term was previously defined.  The error here, technically, is neglecting to use a different, non-defined term, or neglecting to revise the definitional clause to except certain sections of a bill from its application.  Particularly in longer statutes, and particularly in the instance of terms that have non-technical meanings and come easily to mind, it's quite unsurprising that drafters forget what a definitional section says and use terms in ways that clash with their statutory definitions.  

But while we shouldn't be surprised that these errors happen, before we correct them we shouldn't demand anything less than the certainty we demand to correct other kinds of scrivener's errors.  Definitions that don't fit uses of defined terms, again, are not a species of ambiguity; there is nothing ambiguous about saying that a definition shall apply in this section of this statute.  They are accidents of drafting that permit courts to depart from the meaning of otherwise clear texts, and before courts do so, they must be certain that an accident occurred.

Finally, because the two options in a case of possible definitional mismatch are either following the text's plain meaning, or correcting a plain error, cases of definitional mismatch are not cases where Chevron has any role to play, or where, for that matter, any other ambiguity-resolving canon has any role to play, including clear-statement rules or constitutional avoidance.  Statutes are never ambiguous on whether their definitions are mismatched; the only "ambiguity" to speak of in such cases is uncertainty about whether Congress intended to write what it wrote, not ambiguity in the meaning of what it wrote.  But under current doctrine, that sort of ambiguity resolves in favor of assuming Congress did intend to write what it wrote; the only ground for correcting drafting error is certainty that one happened.  

Further, uncertainty about whether Congress intended to enact the text it wrote or some other variant is particularly not a ground for Chevron deference.  Chevron assumes that Congress enacts text that is indeterminate on some question and leaves that question open for further policy choice, thereby delegating that question to an agency to decide (not interpret).  Ambiguities about what text Congress meant to write are not delegations to make interstitial law, but rather ambiguities about the content of the determinate policy choice Congress did make.

1.  The definitional problem in Digital Realty.

There is a section buried in the Dodd-Frank Act that provides "securities whistleblower[s]" a small but potent suite of "incentives and protection[s]," quoting the section's title.  The question in Digital Realty is whether that section's definition of "whistleblower" applies to the section's whistleblower-protection's use of the word "whistleblower."  Though section 922 of the Dodd-Frank Act takes a while explaining itself, what it gives securities whistleblowers is fairly simple.  

First, if a securities whistleblower gives the SEC, and the SEC alone, the goods on someone—as the statute puts it, if "1 or more whistleblowers . . . voluntarily provided original information to the Commission that led to the successful enforcement of [a] covered judicial or administrative action"—he will get an award of between ten to thirty percent of the monetary sanctions the SEC recovers.  Section 922 proceeds to lay out the details of this award scheme, and the money to pay for it, in seven subsections, (b) through (g) and (i).  Subsection (j), the last subsection of the statute, is a grant of rulemaking authority that doesn't mention "whistleblowers," subsection (a) contains the section's definitions, to which we'll get, and subsection (h) is the section's eponymous "protection," an unusually generous anti-retaliation and confidentiality provision at the heart of Digital Realty Trust.

Subsection (h), entitled "Protection of whistleblowers," does a few things.  First, it prohibits three types of retaliation against "a whistleblower."  Employers may not retaliate against whistleblowers for any "lawful act done by the whistleblower" in providing the SEC information, assisting or testifying in an SEC investigation, or for "making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 [cross-references omitted] and any other law, rule, or regulation subject to the jurisdiction of the Commission."  Sarbanes-Oxley, crucially, protects disclosures of violations of securities law to non-SEC federal agencies, Congress, or anyone with supervisory authority over the employee.  Does that mean that 922(h) will offer retaliation protections to anyone who discloses violations of securities law to internal auditors?  Put a pin in that and read on.  

The balance of subsection (h) does three things.  First, it provides victims of the proscribed sorts of anti-whistleblower retaliation with a generous cause of action, with a six-year statute of limitations and a three-year discovery rule in case of late discoveries, double back pay, reinstatement, and fee-shifting.  Second, it prohibits the SEC from disclosing information that could be "reasonably  . . . expected to reveal the identity of a whistleblower," though certain inter- and intra-governmental disclosures are permitted provided that the recipients of the disclosures maintain the same level of confidentiality.  Third, the last sentence of subsection (h) is a sort of Ninth Amendment for "whistleblower[s]," preserving all rights they have under all other sources of law.

I've belabored the various things the statute does for whistleblowers for a reason, but long before I say what that reason is, I want to discuss the definition of "whistleblowers."  And before I say what the definition is, I want to say why the definition is needed.  Though this might not be immediately obvious, the repeated usage of "whistleblower" in this statute is quite eccentric statutory drafting and wouldn't work at all without a definition.  The word whistleblower, in an ordinary-language sense, is a non-technical term of extraordinary vagueness, encompassing a vast array of types of whistleblowing on a vast array of subjects to a vast array of people; no competent statutory drafter would use the word without giving it a technical, non-ordinary definition.**

** The Solicitor General, arguing that "whistleblower" keeps its ordinary meaning in subparagraph (h)(1)(A) of section 922, claims that "numerous federal statutes use 'whistleblower' in the ordinary sense."  Not so.  His sole citations for that claim are: (1) a findings and purpose section of the Whistleblower Protection Act of 1989 that uses the word twice, and in the first instance defines whistleblowers as "those individuals who make disclosures described in such section 2302(b)(8)"; (2) the title of an operative section of the Act, section 5; (3) section 4 of the Act, which never uses the word and seems to have been cited by mistake.  Indeed, it's rather telling that even the Whistleblower Protection Act never uses the word "whistleblower" in the text of any of its operative sections.

As for other federal statutes, some thirty-three statutes (I've checked) use the word "whistleblower."  Of the statutes that really refer to whistleblowers in some operative sense (rather than generically referring to "whistleblower protections"), virtually all of them define whistleblowers either formally (and almost always in terms of disclosures to a particular agency) or informally, by describing the whistleblowers to be protected with great specificity.  I am aware of just one exception to this rule, in the Inspector General Act of 1978, and even that one's debatable, as the provision strongly implies that the whistleblowers Congress is talking about are whistleblowers who talk to Inspectors General.  More typical of congressional drafters' sense of the propriety of using "whistleblower" sans definition in statutes is the Internal Revenue Code's reference to "any provision of federal law (popularly known as whistleblower protection provisions)" that affords certain protections which the Code proceeds to define in more technical terms. [End of footnote.]

To be sure, perhaps you could get by without a definition if you were very clear on what sorts of whistleblowing a whistleblower would get an award for, and what sorts of whistleblowing he'd be protected from retaliation against, and what a whistleblower had to say to entitle himself to confidentiality.  But then, if the meaning of "whistleblower" were to be derived exclusively from context, you wouldn't have to use "whistleblower," would you?  Instead you'd say that a "person" would get an award for providing certain information to the SEC, and an "employee" would be protected from retaliation for disclosing certain information to certain people, and a "person" would have his identity kept confidential if he disclosed this or that—not that a "whistleblower" would be protected if he blew the whistle in very specific ways.  

That would be a somewhat harder statute to draft, though, and in fact a close reading of the statute reveals that as presently drafted it would collapse without a definition of "whistleblower."  The awards subsection doesn't say quite what a whistleblower provides the SEC—information that leads to a successful enforcement, yes, but about what?—the retaliation subsection doesn't even say that much about what information the whistleblower has to give the SEC, just that it's got to be "information [provided] in accordance with this section," and the confidentiality subsection doesn't say a word about what earns a "whistleblower" confidentiality.  So the statute truly hinges upon the definition of "whistleblower" in all operative respects.

Unsurprisingly, given the SEC-focus of most of the operative provisions in the statute, it turns out that section 922's definition of "whistleblower" is exclusively about SEC, securities-law whistleblowing.  A "'whistleblower' means any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission."  That clears up what sort of information the whistleblowers have to provide: information of securities-law violations.  Where does this definition apply?  Just in this section, actually, in the context of the small handful of incentives and protections it provides: "In this section the following definitions shall apply."  And so it turns out that only SEC, securities-law whistleblowers get the benefit of section 922's generous retaliation provision, of its awards, and of its confidentiality protections.

But wait, you ask:  doesn't this definition make one third of the anti-retaliation provision meaningless?  Weren't "whistleblowers" to be protected from retaliation against Sarbanes-Oxley-protected disclosures, which included disclosures to mere internal auditors?  Could Congress really have meant that only SEC whistleblowers would be protected from whistleblowing to auditors or other agencies?  And if it had, wouldn't that make that part of the anti-retaliation provision surplusage?  After all, Congress had already offered "whistleblowers" protection from retaliation against SEC whistleblowing, so what work does it do to protect SEC whistleblowers from retaliation against internal reporting?  Is there any SEC whistlebower who would be fired because of his internal report and not because of his more damaging SEC whistleblowing?  And given all these concerns, doesn't it seem as if section 922's SEC-specific definition of "whistleblower" can't apply to 992(h)(1)(A)'s prohibition of retaliation against whistleblowers who blow internal whistles?  That's the question presented by Digital Realty Trust.

2.  The scope of the definition in Digital Realty (and most any definition) is unambiguous.

All fair questions, though all, as we'll see, with answers, but for now I want to ask a different question:  do these questions actually make whether 922's whistleblower definition applies to 922(h)(1)(A) ambiguous?  Now, a small group of very smart people, including Judge Kavanaugh, have begun to argue that this question should have no bearing on interpretation; if legislative history, policy concerns, or even inferences of intent from surplusage are relevant to interpretation, they should be relevant even when a statute's text is clear, but if they're not so relevant, we shouldn't be bothering with them even when a statute's text is ambiguous.  I think this is all wrong and quite radical, but whether these people are right or not, they're not describing the law as it exists, as they of course readily admit.  Under current law, whether 922's definition's application to 922(h)(1)(A) is ambiguous all but decides the case, in the following four ways.

First, whether 922's definition's application to 922(h)(1)(A) is ambiguous determines, under current law, whether the SEC's interpretation of "whistleblower" in the anti-retaliation provision to mean anyone who does any of the acts it protects will receive Chevron deference.  

Second, whether the definition's application to 922(h)(1)(A) is ambiguous determines whether the surplusage argument I've sketched does any work; if a statute unambiguously contains surpulsage, arguments against surplusage are unavailing, but if it's ambiguous whether it does or not, courts may be influenced by anti-surplusage presumptions to avoid reading the statute to contain surplusage.  

Third, whether the definition's application is ambiguous determines whether policy concerns, or legislative history, do any work; in our half- or pseudo-textualist world, if the statute's ambiguous, legislative history can be used to decide what Congress meant, but if it's not, legislative history can't be used.  

And finally, if 922(h)(1)(A) unambiguously incorporates section 922's definition of "whistleblower," the non-SEC whistleblower in Digital Realty Trust suing his employer under Dodd-Frank for an internal disclosure is going to lose unless he can show that the definition's application 922(h)(1)(A) is (a) unmistakably a drafting error or (b) absurd (and even that probably overstates things—he probably has to show that it's an unmistakable drafting error because it's absurd).

So is it ambiguous whether 922's definition of "whistleblower" applies to the use of "whistleblower" in 922(h)(1)(A)'s retaliation provision?  No, not at all, and in fact, the only sort of question about whether a definition applies to a use of its defined term is whether the definition's application to that term is a scrivener's error.  An "ambiguity" about whether a definition applies to a use of a defined term is really just a doubt about whether the drafter accidentally forgot to except that use from the scope of the definition.  And because that doubt is a doubt about whether there's a drafting error—the existence of which doctrine (correctly, in my view) requires certainty before courts can correct it—such "ambiguities" always must be resolved in favor of applying the definition.  The only definitions that don't apply to uses of the terms they define, on this view, are the ones that were undoubtedly applied to those uses in error.

Why am I so sure of all this?  Consider section 922's definition of "whistleblower" as an example.  As Judge Dennis Jacobs correctly points out in his dissent on this question, the relevant language to whether that definition applies to the anti-retaliation provision in 922(h)(1)(A) is not the anti-retaliation provision, but what the definition itself says about its scope.  And what it says is that "[i]n this section the following definitions shall apply."  Among the definitions that follow is the whistleblower definition, and 922(h)(1)(A) is in "this section," section 922. 

What this unambiguously means is that the meaning of "whistleblower" in 922(h)(1)(A) is that provided by the whistleblower definition in 922(a)(6).   There is no alternate reading.  "In this section the following definitions shall apply" can't be read to mean "in this section the following definitions may apply," or, "in this section less subsection (h)(1)(A), the following definitions shall apply."  These are not meanings that any reasonable speaker of English can give to "shall" or "in this section."  They are not, crucially, things that anyone would ever intentionally use the sentence "in this section the following definitions shall apply" to say—a critical test of ambiguity.  Anyone trying to communicate the message that the whistleblower definition would apply throughout section 922 less section 922(h)(1)(A) would say that.  No one who wanted "whistleblower" to mean something different in 922(h)(1)(A) and realized that she had written that the whistleblower definition "shall apply" "in this section" would hope for courts to figure out what she wanted from the fact that she protected non-SEC whistleblowing from retaliation in (h)(1)(A)(iii).  Rather, she would correct the definition.  

The definition's statement of its scope is not, to be clear, merely unambiguous in a literal or semantic sense; if that were all, that would not exhaust interpretation.  It's also unambiguous in the sense that no one could intentionally use the statement to imply something narrower than what it literally means, and unambiguous in the further sense that no one could use the statement to mean something narrower on the mistaken belief that it has a narrower meaning.  

While we can imagine, for example, people using phrases like "convicted in any court" to impliedly mean any court in the United States, or "Pick up every object on your floor" to impliedly mean something more like "pick up every object but the furniture," given that people use "any" and "every" all the time in reference to some impliedly limited domain, there is no similar phenomenon of people referring to "this section" and implicitly meaning "this section less its most important provision."  And while Congress will sometimes use a word in a way that suggests it might be mistaken about its meaning and would have used a different word absent its mistake (which I have contended is a form of ambiguity), like the time it gave "defendants" special protections against impeachment in the Rules of Evidence and seemed to mistakenly believe that "defendants" meant criminal defendants, there is no conceivable mix-up of that sort about the meaning of "this section" or "shall apply."  

Again, a good litmus test for ambiguity that embraces far more than semantic ambiguity is to ask whether a person trying to say something could intentionally use the language at issue to say it.  If they couldn't—if the only way you can imagine someone using the language at issue to say something is their accidentally writing the wrong words, or intentionally writing what they wrote, changing their mind about what they wanted to say, and forgetting to correct what they wrote—then the language is unambiguous and the only way to escape its meaning, if you believe Congress meant to convey that point, is to invoke drafting error.  And here, the only way we can imagine a drafter using "in this section, the following definitions shall apply" to mean that the whistleblower definition wouldn't apply to the core of "this section" is a sort of drafting error, probably the sort where Congress, after writing the definition, used "whistleblower" more broadly in the anti-retaliation provision and forgot that the definition existed.

3.  The Court's confusion of ambiguous intentions with ambiguous meaning in Bond.

The Court had a very different view of these matters in Bond.  There, the Court thought it ambiguous whether the extraordinarily broad definition of "chemical weapon" in the Chemical Weapons Convention Implementation Act, which included any toxic chemical, applied to the operative provision of that act.  Claiming that "dissonance" between the ordinary meaning of "chemical weapon" and its statutory definition made it ambiguous whether the term's ordinary meaning or its definition controlled, the Court resolved the ambiguity, on the basis of ambiguity-resolving federalism canons, by functionally axing the definition from the entire statute.  

To be precise on how radically sweeping this judicial repeal of the act's definition of its key term was, a point which I don't think has ever been fully appreciated, the Court technically held that the statute's definition of chemical weapons did not apply to section 229 of the statute, which prohibited the use, possession, ownership, or production of chemical weapons; in its place, the Court interpolated an ordinary-meaning definition.  Now, there are only six other sections in the statute, and all of their usages of chemical weapon are completely parasitic on section 229's, section 229 being the only truly operative provision in the statute.  Going through those sections:

Section 229A is a penalties section for violating section 229 that doesn't mention chemical weapons.

Section 229B concerns criminal forfeiture of chemical weapons in the event of a conviction under section 229 for owning or possessing them; if the definition doesn't apply to section 229, it can't apply to section 229B.   

Section 229C is a savings clause for pepper sprays that would be completely unnecessary if not for the statute's broad definition of chemical weapon; it also doesn't mention chemical weapons.  

Section 229D, also not mentioning chemical weapons, gives the United States a cause of action to seek an injunction against the conduct prohibited in section 229; it is completely parasitic on section 229's use of "chemical weapon" and the meaning it has there.

Section 229E says that the Attorney General can ask the Department of Defense for assistance in enforcing section 229 "in an emergency situation involving a chemical weapon."  The predicate for that authority is enforcing section 229, so it too is completely parasitic on section 229's use of chemical weapon; the Attorney General couldn't seek assistance in an emergency involving a chemical weapon that satisfied the statute's definition but fell outside the Court's reading of chemical weapon in section 229, or there would be no section 229 enforcement to assist.  

Finally, section 229F is the statute's definitions section.  It uses "chemical weapon" (outside of its definition of "chemical weapon") only in defining "purposes not prohibited under this chapter," a phrase that's a component part of and carve-out from 229F's definition of "chemical weapon."  

The following, then, is a non-hyperbolic statement; after the Court's ostensibly interpretive holding in Bond that 229F's definition of chemical weapon doesn't apply to section 229, there is no use of chemical weapon in the entire statute to which it does apply.  It is simply as if Congress had never enacted the definition at all.

Now, was there some sort of ambiguity as to whether the definition of chemical weapon in the Chemical Weapons Convention Implementation Act actually applied to the Chemical Weapons Convention Implementation Act?  The question is like asking whether the term "endangered species" in the Endangered Species Act means what Congress said it did in the ESA's definitional section, or some other preferred meaning of your imagination.  The Chemical Weapons Convention Implementation Act is codified in chapter 11B of title 18.  Section 229F begins, "In this chapter:  The term 'chemical weapon' means the following . . . ."  Can "[i]n this chapter: The term 'chemical weapon' means the following" mean "In this chapter: The term 'chemical weapon' doesn't mean the following, but instead means whatever it means ordinarily"?  Not so much.  

What Chief Justice Roberts described as an ambiguity of statutory meaning is really an ambiguity in congressional intention.  And while there was no ambiguity of the former variety, the ambiguity of the latter variety was very real; the Court's mistake wasn't in finding some kind of ambiguity at all, but in confusing unactionable doubt over whether Congress really meant to write what it said with doubt as to the meaning of what Congress did say.  As Heather Gerken, hardly an unforgiving textualist, has written, "[t]he statute's language was crystalline"; the Court "thought the statute was ambiguous" because "it couldn't bring itself to believe that Congress had, in fact, passed a statute broad enough to reach Bond's conduct."   

Did Congress really make it a federal crime to use (with exceptions for peaceful purposes) any "toxic chemical" capable of causing permanent harm or temporary incapacitation to human or animal life?  Absolutely.  Did Congress really want or consciously intend to make any use of a toxic chemical a violation of the Chemical Weapons Convention Implementation Act?  Hard to say, and perhaps hard to believe; most likely, Congress implemented the titular Chemical Weapons Convention by copying its definition of chemical weapon without entire awareness of its breadth or the consequences.  And would Congress have really wanted to make it a violation of the Chemical Weapons Act to smear mild-skin-burn-inducing chemicals on someone's mailbox, were the question put to them?  Very possibly not.  But these uncertainties about what Congress wanted to do, or what it would have wanted to do had it thought harder about a court's present problem, aren't ambiguities—not for a textualist anyway.  They only matter, really, to a sort of purposivist that's no longer supposed to exist.

Two final comments on Bond.  First, what of Roberts's argument that it isn't "unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition"?  Is there nothing to that?  As Justice Scalia said in his separate concurrence, it is most unusual to consider a defined term's ordinary meaning for the Court's purposes; prior to Bond the Court had only considered the ordinary meaning of defined terms to shed light on the meaning of ambiguous definitions, not to delete them.  

But more fundamentally, the argument is nonsense.  To say that there's dissonance between the ordinary meaning of chemical weapon and what the statute says it "means," and that it's therefore ambiguous if "chemical weapon" in that statute means what the statute says it does, is like saying that a child's answer on his homework that "3 X 7 = 37" is ambiguous because there's profound dissonance between "37" and the ordinary meaning of "3 X 7."  One could talk of scrivener's error in some similar cases; if the child wrote that "3 X 7 = 10," you might wonder if he meant to write a plus sign, or maybe even if he thought the multiplication sign is the addition sign.  But the meaning of the equation would still be unambiguous and the only way you could dissolve the dissonance between "3 X 7" = 10 would be to read the use of the multiplication symbol as an accident or mistake.  

Similarly, imagine Congress defined a vegetable, in the school-lunch statute, to include any food or beverage containing a food syrup derived from a vegetable—e.g., a soda containing corn syrup.  The dissonance between what vegetable means in any ordinary sense and how Congress defined it would be profound, much more so than the dissonance that worried the Court in Bond, and the policy, at least to my mind, would be vastly more offensive.  But would there be any ambiguity about whether "vegetables" in the statute included soda?  And if a parent sued a school for providing soda-vegetables as vegetables on the theory that sodas weren't statutory vegetables because they weren't ordinary-language vegetables, the "dissonant" definition notwithstanding, wouldn't (and shouldn't) their lawyer be sanctioned for frivolously asking the court to rewrite the school-lunch law?  What distinguishes Bond?

Finally, why didn't Roberts suggest that equating chemical weapons with any harmful toxic chemical was likely some sort of mistake, rather like "3 X 7 = 10" might be, instead of claiming that the statute was ambiguous as written?  Because making that argument, I think, would be impossible.  

How, after all, in legal drafting, do definitions get mistakenly (technically, accidentally—linguistic mistakes are confusions about meaning, not drafting errors) applied to defined terms?  Usually, you define a term, use it to mean its natural meaning, and forget you already defined it to mean something rather different.  That account of definitional accident, was unavailable in Bond, because it's unthinkable, at least extremely improbable, that Congress or its drafters carefully defined "chemical weapon" in section 229F, forgot how it had been defined, and then wrote each of sections 229, 229B, and 229E, the small handful of adjacent sections that mention chemical weapons, on the mistaken assumption that their central, hardly self-defining term either wasn't defined or had been defined in a very different way.  To impute that sort of accident to Congress requires an assumption of staggering congressional incompetence or collective drunkenness.

In my next post I'll address when definitions can be corrected, Chevron's relationship to claims of definitional error, and hopefully get around to how Digital Realty itself should be decided.